What fair use? Three strikes and you’re out… of YouTube

Film critic Kevin Lee found his YouTube account closed and his video essays …

If there's one thing we've heard repeatedly from content owners when it comes to user-generated content, it's that there's no need to worry; fair use would be respected. But Kevin Lee's story shows just how many problems remain with the content owners' use of DMCA takedown notices, and the chilling effects that such notices can have on speech.

Lee is a film critic and blogger perhaps best known at the moment for watching the 1,000 best films ever made and writing about them at his website. As part of his work, he has evolved an online video essay format that uses film clips like a professor might, as part of his criticism and commentary. Each essay was short, but Lee eventually uploaded more than five hours of such material to YouTube. After YouTube passed on a third DMCA notice this week, though, the company disabled his account and removed all his work.

The problems began a few years back, when Lee uploaded some short (1-3 minutes), but unedited film clips. He tells Ars that he was using them "to illustrate points I was making in my blog entries on those films," but the clips themselves were simply copied from the films in question. They attracted DMCA takedown notices, which Lee did not contest, apparently on the belief that the brief but unedited clips might in fact be infringing.

Lee eventually moved to the video essay format, where he edits clips together and comments on them, making his work much more obviously critical in nature; even an outside observer who didn't read Lee's blog should realize that these were bits of film criticism, not simple reposts of films or film clips.

But Lee's recent essay on the film ...And God Created Woman attracted a third DMCA takedown notice from the rightsholder. YouTube duly passed it along to Lee, but since this was his "third strike," it also shut down his account. "Unfortunately," Lee told Ars in an e-mail, "the first instance of a claim on a video that I felt absolutely qualified as fair use was also the 'third strike' against my account, so my account was disabled before I could file a counternotice."

Overzealous?

Under the DMCA, the mere filing of a counternotice would be enough to get the work reposted. If a rightsholder continued to feel that the work was infringing, the case would have to go before a judge.

Lee says that his opinion of YouTube has changed. "This development removes any belief I have in YouTube as a place that values the work I do," he says. "Clearly, their priority is legal self-protection over making provisions for something that can be deemed of legitimate cultural value." Lee plans to upload his work to another video-sharing site, and he might try YouTube again under a different account—but this time he would file DMCA counternotices immediately upon receiving a warning.

Canadian lawyer Michael Geist, opposed to a DMCA-style system for Canada, notes, "At issue here is not YouTube—they are just following the DMCA notice-and-takedown system—but rather the DMCA system itself, which regularly demonstrates the chilling effect of taking down content without any analysis of whether there is actually an infringement."

This issue isn't just one that affects effete New York latte-sipping film critics, either (not that Lee is any of these things); the McCain campaign complained last year about the exact same issue, and how DMCA takedown notices could—even if bogus—exert a serious, chilling effect on speech.

The campaign asked for some human intervention, requesting that YouTube take a look at complaints and refuse to act on them in cases of obvious fair use. YouTube responded with a strong "no."

DMCA claims turn politicians into fair use advocates

YouTube Chief Counsel Zahavah Levine made two key points at the time. The first was that having YouTube determine "fair use" claims is difficult and risky for the site. As Levine notes, "Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use." YouTube is not about to 1) spend more money and 2) risk its safe harbor by getting involved in such battles.

So, for now, any DMCA request will be acted upon, and it's up to the recipients of such notices to file counternotices quickly if they believe their work stands on solid legal ground. Having one's videos pulled from a site like YouTube isn't the end of the world, but it's a big deal when your work depends on reaching others. If visitors have to find your work on a new YouTube channel or another video-sharing site, if they have to change any embedded videos that they posted on their blogs, the disruption has real consequences.

Who watches the watchers?

Lee's case also raises questions about how rightsholders undertake the (legitimate) task of policing content sites like YouTube. The content industry has issued its own set of principles that it believes should govern user-generated content, and it nods at fair use. But cases like Lee's continue to happen.

Another video essayist and critic, Matt Zoller Seitz, notes that using film clips in his videos has gotten harder recently. "In the past few weeks," he writes, "I've seen a few of my rip-dependent video essays (most of which I believe I could defend as fair use-exempted work) taken off YouTube or denied publication in the first place. For the the most part, attempts to appeal the decision appeared to have been round-filed by the company."

It's one thing to go after complete film clips that are five minutes, ten minutes, fifteen minutes long, and complete copies of films are obvious and totally acceptable targets for DMCA takedowns. But given all that low-hanging fruit to pluck, it's a mystery why the content industry continues to harrass these other sorts of use that, if anything, would drive more viewers to watch the films in question.

These kinds of short-sighted legal actions have the unintended effect of revving up opposition to all rightsholder complaints, legitimate ones included, and they encourage a disrespect for copyright. If the content industry is serious about abiding by its own set of UGC principles, granting far more leeway in areas that simply don't matter would go a long way toward keeping people on its side when content owners protest far more offensive practices.